STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS )

COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0515

)

CHRISTOPHER LUCIBELLO, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on May 17, 1990, in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

P. O. Box 4688 Clearwater, FL 34618

For Respondent: Mark F. Kelly, Esquire

P. O. Box 75638 Tampa, FL 33657-0638

STATEMENT OF THE ISSUES

The issue in this case is whether the School Board of Pinellas County (Petitioner) should suspend Christopher Lucibello (Respondent) from his position as a chemistry teacher at Gibbs High School for a period of three days, without pay, based upon actions he is alleged to have taken to cause three students to leave the school building after classes concluded on October 27, 1989.

PRELIMINARY STATEMENT

The Petitioner called nine witnesses and introduced nine exhibits, including the late-filed deposition of Robert W. Orlopp. The Respondent testified-on his own behalf and also called one additional witness. Three exhibits were introduced on behalf of the Respondent.

The transcript of the final hearing was filed on Nay 29, 1990, and the parties were allowed ten days thereafter within which to file proposed recommended orders. A ruling on each timely filed proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a teacher holding a teaching certificate issued by the State of Florida, and who, at all times material hereto, has been employed by the Petitioner under continuing contract as a chemistry teacher at Gibbs High School.

   
   

2. At Gibbs High School, classes conclude at 2:30 p.m., and students then proceed to their lockers, pick up jackets and books, and leave the building. Student lockers are located in the hallway, outside of classrooms. On occasion, students remain after school to make up work, or take tests which they missed, and teachers generally remain after 2:30 p.m. to straighten up, grade papers, and prepare for the next day's classes.

   
   

3. On Friday, October 27, 1989, classes concluded at 2:30 p.m., as normal, and Respondent remained in his chemistry classroom cleaning and straightening up the lab. At approximately 2:45 p.m., Respondent was disturbed by loud student laughter and talking in the hallway outside of his classroom. He stepped into the hallway and asked three female students, whom he did not know, to be quiet and to leave the building. One of the students told another student to go ahead and get her algebra book because Respondent could not make them leave until they got their books. There is no rule or policy at Gibbs High School requiring students to leave campus at any particular time after classes are over.

   
   

4. When the three students did not immediately leave the building as he had asked, Respondent stated that he had something that would make them leave, and proceeded back into his lab where he obtained a bottle of butyric acid. He then approached the three students in the hallway holding the open bottle of butyric acid while blowing and fanning its fumes in the students' direction. Respondent got to within four to five feet of the students, and then followed them a distance of about five to six feet, blowing and fanning the fumes in their direction, until they left the building at approximately 3:00 p.m. The students did not know what chemical Respondent had exposed them to.

   
   

5. Butyric acid is a volatile acid with a sickening odor, similar to vomit, that spreads rapidly. A safety data sheet for this chemical indicates that it is a strong irritant to body tissue and a stench agent, and warns to avoid contact or exposure to skin and body tissue. Respondent is familiar with this safety data sheet for butyric acid.

   
   

6. Two of the students began to feel dizzy and to develop headaches immediately after exposure to the butyric acid, and the third student experienced nausea and skin irritation. These reactions are consistent with exposure to butyric acid fumes. None of the students sought medical attention as a result of the incident.

   
   

7. The three students immediately went to the principal's office and reported the incident. The assistant principal noted that they were very upset and excited.

   
   

8. Respondent does not dispute that he blew and fanned fumes of butyric acid in the direction of three female students as a means of getting them to leave the building after classes had concluded on October 27, 1989. However, he testified that this action presented no danger to the students. He uses butyric acid in his chemistry class, and exposes students to its fumes during class as a means of demonstrating how organic acids smell. None of his students has ever gotten sick as a result of such exposure. The particular bottle involved in

   this incident is over 18 years old, and has been diluted over the years with the addition of water. Respondent has no idea how strong the concentration of butyric acid is in the bottle he used. During an investigation of this incidents Respondent admitted to Petitioner's representatives that he was "burned out" and had simply gotten angry at these students. Petitioner seeks to suspend Respondent for three days, without pay, as a result of this incident.

   
   

9. Although Respondent and another teacher testified that there had been a recent problem with noise in the hallway outside Respondent's classroom in the afternoon after classes concluded for the day, and they had warned students about making too much noise in the hallway after classes, no reports of this problem had been made to the principal. Administrators were present in the school at the time of this incident, but Respondent did not attempt to contact them for assistance in dealing with this noise problem. Several means exist at Gibbs High School by which teachers can contact the administration for help, including a panic button, telephone and intercom.

   
   

10. Students involved in this incident testified that it has given them a negative impression of Respondent as a teacher. Parents and guardians of these students complained to the school administration about this incident, and testified that they consider Respondent's action to be irresponsible. Parental concern was expressed about Respondent's ability to control himself. The principal of Gibbs High School, John Demps, testified that he considered Respondent's action in this incident to be unprofessional and harmful to the school's relationship with these students, their parents and the community. According to the expert testimony of Steven Crosby, Respondent's behavior diminishes his effectiveness as a teacher because it creates a poor image of instructors at the school, and causes concerns among parents for the welfare of their children.

    
    

11. Respondent has been employed by the Pinellas County school system for

    18 years. During the month of June 1983, Respondent received a written reprimand following an incident in which he became upset in class, and struck a yard stick on a desk, breaking it and causing it to fly in the direction of student, resulting in injury to that student. Previous to this written reprimand, Respondent had been orally warned by his principal on several occasions to control his temper and refrain from yelling at students, or otherwise embarrassing them.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

13. The Petitioner has the burden of proof in this case. Section 231.36(4)(c), Florida Statutes. This matter involves the possible loss of livelihood since it will result in an increased level of discipline, including dismissal, for any further violations, and thus, the elevated standard of proof of clear and convincing evidence will be applied. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Section 231.36(4)(c), Florida Statutes, authorizes school boards to suspend or dismiss any member of the instructional staff who engages in misconduct in office or gross insubordination. Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as a violation of the Code of

    Ethics of the Education Profession and the Principles of Professional Conduct, which have been adopted as Rules 6B-1.001 and 6B-1.006, that is so serious as to impair the teacher's effectiveness in the school system.

    
    

15. Code of Ethics specifically requires the exercise of the best professional judgement and integrity, as well as maintaining the respect and confidence of students and parents. Rule 6B-1.001(2)(3). The Principles of Professional Conduct set forth the teacher's obligations to students, including protection from conditions harmful to safety or which cause embarrassment. Rule 6B-1.006(3)(a)(e)

    
    

16. The Petitioner has met its burden of proof regarding the charge of misconduct in office. Respondent's conduct during the incident in question, including getting a bottle of butyric acid from his classroom, approaching three female students to within four to five feet, opening the bottle, and then blowing and fanning the fumes in their direction, evidences a lack of professional judgment and a failure to meet his obligation of protecting students from harmful conditions and from embarrassment. The students who were in the hallway outside Respondent's classroom were not in violation of any school policy, and had not been the subject of any complaints to the administration, either by the Respondent or anyone else. Respondent intentionally exposed them to the sickening fumes of a chemical which was unknown to them, thereby causing these students to become upset and excited.

    The greater weight of evidence in this record also establishes that Respondent's actions during this incident have diminished his effectiveness as a teacher, and have impaired the respect and confidence which these students and their parents have for him as a teacher.

    
    

17. In order for a charge of gross insubordination to be sustained, there must be some prior order given to a teacher on a continuing contract that the teacher then disobeys. Rutan v. Pasco County School Board, 435 So.2d 399 (Fla. 2nd DCA 1983). Gross insubordination is defined as a constant or continuing intentional refusal to obey a direct order, reasonable'in nature, and given by and with proper authority. Rule 6B-4.009(4). Respondent had previously been warned, orally and by written reprimand, about the need to control his temper, and to deal with student disciplinary problems in a more appropriate manner than by yelling at students, embarrassing them, or breaking yard sticks over desks.

    
    

18. However, Respondent's conduct in this incident does not evidence a disregard of these prior warnings and reprimands. From June 1983 until this incident in October 1989, the record is devoid of any evidence of conduct by Respondent which would constitute misconduct in office, or otherwise subject him to disciplinary action. The fact that he was warned and reprimanded over six years prior to this incident for conduct similar to that which has been shown in this case, does not establish a constant or continuing intentional refusal to obey a direct order, which would thereby constitute gross insubordination. Respondent apparently conducted himself without incident for over six years, and while his conduct in this case does constitute misconduct in office, it cannot be construed to establish gross insubordination since the substantial passage of time from June 1983 until October 1989 precludes a finding that his actions have been constant or continuing. Thus, Petitioner has failed to meet its burden on the charge of gross insubordination.

    
    

19. Due to the fact that the three day suspension, without pay, that was proposed in this case was predicated upon a finding that Respondent's actions constituted both misconduct in office and gross insubordination, the proposed

period of suspension should be reduced to two days, without pay, since the charge of gross insubordination has not been supported by the evidence in this record.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent for two days, without pay.

DONE AND ENTERED this 19th day of June, 1990 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-0515

Rulings on Petitioner's Proposed Findings of Fact:

5. Adopted in Findings 2, 3. 6-10. Adopted in Finding 3.

1. Adopted in Finding 4.

2. Adopted in Finding 5.

3. Adopted in Finding 8. 14-15 Adopted in Finding 6.

1. Adopted in Finding 5.

2. Adopted in Finding 9.

3. Rejected as not based on competent substantial evidence.

4. Adopted in Finding 8.

5. Adopted in Finding 6.

6. Adopted in Finding 10.

7. Rejected as immaterial hearsay.

8. Adopted in Finding 7.

9. Adopted in Finding 8.

25-32. Adopted in Finding 10, but otherwise Rejected as unnecessary.

1. Adopted in Finding 9.

2. Rejected as unnecessary.

Rulings on Respondent's Proposed Findings of Fact:

1. Adopted in Findings 1, 11.

2. Adopted in Finding 8.

3. Adopted in Finding 9, but otherwise Rejected as unnecessary and immaterial.

4. Adopted in Findings 3, 4, but otherwise Rejected as unnecessary and immaterial.

5. Adopted and Rejected, in part, in Findings 6, 7.

6. Adopted in Findings 5, 8, but otherwise Rejected as immaterial.

7. Adopted in Finding 3.

8. Adopted and Rejected, in part, in Finding 10, and otherwise as not based on competent substantial evidence.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

P. O. Box 4688 Clearwater, FL 34618

Mark F. Kelly, Esquire

P. O. Box 75638 Tampa, FL 33657-0638

Dr. Scott N. Rose Superintendent

P. O. Box 4688 Clearwater, FL 34618

=================================================================

AGENCY FINAL ORDER

=================================================================

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

SCHOOL BOARD OF PINELLAS, COUNTY, FLORIDA

Petitioner, DOAH Case No. 90-0515

vs.

CHRISTOPHER LUCIBELLO,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated December 12, 1989, which set forth the reasons therefore, the Superintendent of Schools notified Christopher Lucibello that he was recommending to the School Board of Pinellas County, that said Christopher Lucibello be suspended without pay for three (3) days, and

WHEREAS, said Christopher Lucibello requested an administrative hearing on the allegations contained in the Superintendent's notification letter of December 12, 1989, and

WHEREAS, the dispute was referred to the Department of Administration, Division of Administrative Hearings to assign a Hearing Officer to conduct the administrative hearing in the cause, and

WHEREAS, an administrative hearing was conducted on May 17, 1990, before Donald D. Conn, Hearing Officer of the Administrative Hearings, and

WHEREAS, the Hearing Officer's Recommended Order together with the entire record of the case, including Petitioner's and Respondent's Exceptions to the Hearing Officer's Recommended Order has been reviewed; it is

ORDERED and ADJUDGED that Respondent's first exception to the Hearing Officer's Recommended Order is hereby rejected based on the deposition of Robert

1. Orlopp, Page 8, lines 14-25 and Page 9, lines 1-9, indicating that contact with the vapors of a chemical such as Butyric acid is in fact coming into contact with the chemical itself and on the fact that neither the testimony of Robert Orlopp nor Petitioner's exhibit 3 indicates that contact with the fumes of Butyric acid is any less harmful than contact with the liquid form of Butyric acid, and in fact Petitioner's exhibit 3 indicates , "Smell is sickening; avoid breathing odor" and "Odor will saturate clothes", and "Dispense and use in a fume hood to avoid obnoxious odor", "avoid all body contact" (emphasis added). Additionally, a review of the Hearing Officer's Finding of Fact number 4 reveals that he did not indicate that exposure to Butyric acid caused the physical symptoms reported by the students, but in any event the fact that the symptoms were consistent with exposure to Butyric acid, the fact that the students were symptom free prior to being exposed to the Butyric acid, and the fact that the symptoms were exhibited immediately after the exposure to Butyric acid is sufficient to support a finding that the symptoms were caused by exposure to Butyric acid; and it is further

   
   

   ORDERED and ADJUDGED, that Respondent's second exception to paragraph 9 of the Hearing Officer's Recommended Order is rejected because paragraph 9 is supported by competent evidence, particularly when coupled with evidence that Respondent did not even attempt to utilize any of the means available; and it is further

   
   

   ORDERED and ADJUDGED, that Respondent's third exception to the Hearing Officer's Recommended Order is hereby rejected because it is based on the premises that (a) the burden of proof on the administration in a case involving the suspension of a teacher without pay is to establish disputed facts by clear and convincing evidence; (b) that the Hearing Officer applied conflicting standards of proof; and (c) that if the Hearing Officer applied conflicting standards of proof that his recommendation must be rejected. It is obvious from reading the Hearing Officer's Recommended Order that by whichever standard of proof is appropriate, the Hearing Officer felt the burden of proof had been met. Moreover, the elevated standard of clear and convincing evidence has only been applied when a teacher is to be deprived of his livelihood. A three (3) day suspension without pay does not deprive a teacher of his livelihood. It is also obvious from the testimony that Respondent intended to frighten the children and that he intended to use Butyric acid. Respondent's own testimony indicated that he was familiar with Butyric acid and the material safety data sheets. He also

   indicated that when using the substance in class he always informed the students as to what the substance was, and failed to do so with the three students in question in this case; and it is further

   
   

   ORDERED and ADJUDGED, that Respondent's fourth exception to the Hearing Officer's Recommended Order is hereby rejected based on the fact that the witness James McKee was never qualified as an expert in the field of education administration, nor was any evidence ever indicated that Mr. McKee had been given any training or responsibility in evaluating fellow teachers' effectiveness, and based on the uncontroverted testimony that the students in question and their families questioned Respondent's judgment and indeed his meital health as a result of his behavior and the uncontroverted testimony of school administrators indicating that a teacher's effectiveness, in their opinion is diminished when his behavior causes such concerns on the part of parents and students; and it is further

   
   

   ORDERED and ADJUDGED, that Petitioner's Exceptions to the Hearing Officer's Recommended Order are hereby granted, and the Hearing Officer's Recommended penalty of a two day suspension without pay is hereby rejected and increased to a three day suspension without pay for the following reasons:

   
   

   1. The Hearing Officer's recommended penalty is based on the assumption that the Superintendent's recommendation of a three day suspension without pay was contingent on a finding that Respondent's conduct constituted both misconduct in office and gross insubordination. Whereas, according to the testimony of Stephen Crosby at pages 82 and 83 of the transcript of the hearing of the above styled cause, the number of possible legal theories under which charges could be brought against Respondent was not a factor in the recommendation that Respondent be suspended without pay for three days.

      
      

   2. Respondent's misconduct is of a very serious nature as shown by the following factors: (a) Respondent by his own admission deliberately blew the fumes of a chemical substance at three students; (b) this caused the students to become frightened, nearly hysterical, and to suffer a variety of discomforts, such as itching, dizziness, headache, and nausea as shown by the testimony of LaRonda Canaday at pages 11, 12 and 20 of the transcript, the testimony of Stacia Rivera at page 33 of the transcript, and the testimony of Anthony Thurston at page 60 of the transcript; (c) Respondent did not inform the students of the nature of the substance that he was blowing on to them as shown by the testimony of Stacia Rivera and LaRonda Canaday at pages 22 and 32 of the transcript of the hearing in this cause; (d) the substance used by respondent was butyric acid, as shown by the testimony of Stephen Crosby at page 79 of the transcript of the hearing in this cause; (e) butyric acid is a potentially harmful substance which can cause symptoms such as those experienced by the students in question as shown by petitioner's exhibit 3 and the deposition of Robert Orlopp; (f) Respondent knew of the properties of butyric acid and was familiar with the safety data sheet admitted into evidence as Petitioner's Exhibit 3, as shown by Respondent's own testimony at page 117 of the transcript of this hearing; (g) Respondent's conduct was unsettling to the families of the students as shown by the testimony of Clarice Canaday, Deborah Rivera, and James King, found at pages 46, 47, and 50-51 of the transcript of the hearing in this cause.

      
      

   3. Respondent has previously been warned to control his temper as shown by Petitioner's Exhibit 5 and the testimony of Marilyn Heminger found at pages 55- through 59 in the transcript of the hearing in this cause.

   4. Respondent has shown no remorse for his conduct as shown by the testimony of Anthony Thurston found at page 64 of the administrative hearing, and at the administrative hearing maintained that he had done nothing wrong as shown by his own testimony at page 116; and it is further

ORDERED and ADJUDGED, that in all other respects, the Hearing Officer's Recommended Order is hereby accepted, adopted, and incorporated herein by reference; and it is further

ORDERED and ADJUDGED, that Christopher Lucibello is hereby suspended without pay for a period of three (3) days, effective November 27, 28 and 29, 1990.

DONE and ORDERED on this the 14th day of November, 1990, in Clearwater, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

Attest: Ex-Official Secretary

Docket for Case No: 90-000515

Orders for Case No: 90-000515